An action or omission is not a crime, although it formally contains signs of an act, but because of its insignificance it does not pose a public danger.

By the verdict of the District Court No. 2 of the Almaty district of Astana dated November 19, 2013: M. was sentenced under part two of Article 307 of the Criminal Code of the Republic of Kazakhstan (hereinafter referred to as the Criminal Code) to 2 years in prison, under part one of Article 314 of the Criminal Code to 1 year in prison, on the basis of part two of Article 58 of the Criminal Code finally to 2 years deprivation of liberty. Based on article 63 of the Criminal Code, the imposed punishment was decided to be considered conditional with a probation period of 1 year. By a decision of the Appellate Judicial Board for Criminal Cases of the Astana City Court dated February 21, 2014, the court's verdict was overturned with the termination of criminal proceedings regarding M.'s conviction under part two of Article 307 of the Criminal Code. By the verdict of the Appellate Judicial Board for Criminal Cases of the Astana City Court dated February 21, 2014, M. was found not guilty on charges of committing a crime under part one of Article 314 of the Criminal Code and acquitted due to the absence of corpus delicti in his actions. By the decision of the Cassation Judicial Board of the Astana City Court dated April 24, 2014, the decision and verdict of the appellate instance dated February 21, 2014 were canceled, the case was sent for new consideration to the Appellate Judicial Board for Criminal Cases of the Astana City Court.

By a decision of the Appellate Judicial Board for Criminal Cases of the Astana City Court dated July 1, 2014, the verdict of the District Court No. 2 of the Almaty district of Astana dated November 19, 2014 against M. was changed: - regarding M.'s conviction under part two of Article 307 of the Criminal Code, the case was canceled and the proceedings were discontinued in this part; - the application of part two of the article was canceled 58 CC. The rest of the verdict was left unchanged. By the decision of the Cassation Judicial Board of the Astana City Court dated August 7, 2014, the verdict of the court of first instance and the decision of the Appellate Judicial Board for Criminal Cases of the Astana City Court dated July 1, 2014 remained unchanged. The court found M. guilty of official forgery, that is, the entry of deliberately false information into official documents by a person authorized to perform state functions, committed with the aim of extracting benefits and advantages for other persons and organizations and causing harm to the organization. Having studied the materials of the criminal case and discussed the arguments of the petition, the Supervisory Judicial Board for Criminal Cases of the Supreme Court of the Republic of Kazakhstan cancelled the judicial acts against M. on the following grounds.

Within the meaning of the law, criminal liability under Article 314 of the Criminal Code occurs for a person entering deliberately false information into official documents in order to extract benefits and advantages for himself or other persons or organizations. At the same time, the courts ignored the fact that not every violation entails criminal liability under Article 314 of the Criminal Code, but only committed with direct intent. The presence of any other goals in the commission of actions provided for in Article 314 of the Criminal Code precludes criminal liability for official forgery. In this case, in order to recognize M.'s actions as socially dangerous, it is necessary to establish that they were committed in order to extract benefits and advantages for themselves or others, or for some organization. According to the agreement between GU "C" under the Department of Culture represented by its director M. and LLP "A" represented by Director N., LLP undertook to carry out routine repairs of the library windows, GU – to make payments according to the financing plan and upon the services. From the testimony of witnesses H., G., A. and B., given by them during the court session, it follows that M. On July 25, 2012, an act was signed for the outstanding works specified in the contract dated July 19, 2012 in the amount of 1,397,000 tenge. The act was signed in advance, in connection with M.'s going on another vacation, so that during this vacation they would not look for him to sign the act. Under the terms of the contract, N. undertook to replace plastic windows in the State Institution by July 31, 2012. After returning from vacation, M., having learned that the windows had not yet been replaced and the work had not been completed, began to take measures to return the funds from N. M. He called N. several times, but the latter's phone did not answer. On September 7, 2012, N. 10,000 tenge was transferred to the bank account of the GU. During a phone conversation, N. also promised that he was looking for workers and would do the job soon.

After that, on the instructions of M., his deputy, G., on February 20, 2013, wrote an application to the Department of Internal Affairs of the Almaty district for assistance in fulfilling the terms of the contract. In November, N. transferred 440,000 tenge to the State Budget, about which he sent a letter of guarantee on November 9, 2012, in which he apologized and pledged to repay the remaining debt. At the same time, the materials of the criminal case established that on February 13, 2013, M. filed a claim with the economic court for recovery from LLP "A" represented by N. 1,397,000 tenge. During the consideration of the civil case on the said statement of claim, N. The damage caused by him in the amount of 1,387,900 tenge was voluntarily returned. The remaining 10,000 tenge was recovered by a court decision dated April 1, 2013. From the copies of G.'s statements addressed to the head of the Department of Internal Affairs of the Almaty district of Astana dated October 16, 2012, it can be seen that GU "Ts" requests that the director of LLP "A" N. appear at the library to fulfill his obligations under the contract. By the investigator's decision of October 18, 2012, the initiation of a criminal case against N. was refused due to the lack of corpus delicti in his actions. From the above circumstances, it follows that after the measures taken by M., 1,397,000 tenge stolen by the director of LLP "A" N. were returned in full to GU "C" on February 26, 2013.

The criminal case against M. was initiated on February 27, 2013. There is no evidence that M. had any vested interest in signing the act. The money transferred for the work performed by N. was voluntarily returned to the State Department in full before the criminal case was initiated. At the same time, the court of appeal found that N., abusing the trust of the director of the State Institution M., stole money by deception, ignoring the fact that M. having trusted the promises of N., being in a state of delusion, he voluntarily transferred funds to the account of the LLP. Because the court has reliably established that N., having a selfish motive, fraudulently, violating the terms of the public procurement tender, to carry out his criminal intent, deliberately offering the lowest price for the performance of the volume of work, illegally won the tender. At the same time, N. claimed that he regularly participates in tenders and has work experience. Based on the act of completed works dated July 31, 2012, 1,397,900 tenge was received into the settlement account of LLP "A" on August 2, 2012.The specified funds, without actually fulfilling the terms of the agreement, were withdrawn from the account in full by H. and used at his discretion.  Thus, N. stole large amounts of money by deception and abuse of trust, for which he was brought to criminal responsibility under paragraph "b" of the third part of Article 177 of the Criminal Code. These circumstances indicate that the specified terms of the contract were not substantially fulfilled by the LLP, and M., trusting N., signed the act of completed work. However, M.'s actions in the absence of a goal aimed at obtaining benefits and advantages for himself and others, causing harm to the state, according to the degree of public danger, cannot be recognized as a crime and for their commission M. can only be punished in a disciplinary manner.

In fact, M.'s actions are seen as a violation of financial discipline. According to the second part of Article 9 of the Criminal Code, an act or omission is not a crime, although it formally contains signs of an act provided for in the special part of the Criminal Code, but because of its insignificance it does not pose a public danger, that is, it has not caused harm or created a threat of harm to an individual, society or the state. In such circumstances, the Supervisory Judicial Board for Criminal Cases of the Supreme Court of the Republic of Kazakhstan considered that in the actions of M. There is no corpus delicti provided for in Article 314 of the Criminal Code, and the judicial acts issued against him are illegal and unfounded, therefore they are subject to cancellation with the termination of the criminal case for the absence of corpus delicti in his actions. 

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